TMI Blog2018 (1) TMI 1665X X X X Extracts X X X X X X X X Extracts X X X X ..... criminal offence are not satisfied then the Court may interfere. The principle thus laid down is before issuing a process and taking cognizance the Court has to consider from the existing material whether case falls within the exception and only if not, to say prima facie accusation on a complaint or final report to take cognizance for any criminal if makes out. It is something different of prima facie consideration at pre-cognizance stage to the post-cognizance defence available to the accused under any of the exceptions in detail to make out either from the prosecution material or from any material placed by accused to show he is not liable to be charged to face the ordeal of trial. When such is the case, so far as the quash Court under Section 482 CrPC from the accused also entitled to ask by placing any material in defence to consider from facts and circumstances, to subserve the ends of Justice, irrespective of the complaint allegations make out case for taking cognizance, where it deserves for quashing instead of continuing a lame prosecution with no purpose and by no need of inviting the accused to face the ordeal of trial. The very cognizance order against the Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on agreement and share holders agreement, 3. The Senior Manager Projects APIIC had recommended that the price of the land to be conveyed to SPV on free hold basis by making an upward revision from ₹ 29,00,000/- to ₹ 40,00,000/- per acre in view of the developments taken place resulting in appreciation of the land cost. However. LVS in furtherance of the criminal conspiracy made a recommendation to the GoAP favourable to M/s. Emaar Properties. PJSC. Dubai (A.2) to the effect of not enhancing the cost of the land per acre but to retain the same at ₹ 29,00,000/- assigning the reason that the project would suffer double jeopardy of the increased project cost and corresponding reduction in the Govt. equity, which may cast an additional debt burden on APIIC. LVS himself admittedly accepted the price of ₹ 35,00,000/- per acre fixed by the price fixation committee of APIIC in respect of the land at Manikonda Jagir (where the integrated project is located) for the year 2004 which was valid till 31.03.2005 by making an endorsement to that effect in the file. 4. LVS in furtherance of the criminal conspiracy agreed to the request of the developer and recommended l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.1 to A.6 and A.9 to A.14 on 05.03.2012. On 16.03.2012 by docket order of the Special Judge having taken up for hearing for want of sanction against A.1 (B.P. Acharya) and A.11(LVS) to take cognizance observed that so far no sanction orders are obtained and filed as such, no cognizance of the offences alleged against them can be taken and A.1 in judicial custody shall be released on bonds and shall not leave Hyderabad without permission of Court and shall surrender passport or state by affidavit if no passport. Order was to summon only A.2 to A.5, A.9, A.10 and A.12 to A.14 by 30.03.2012. Thus it is crystal clear from the docket order dt. 16.03.2012 of the Special Judge that no cognizance can be taken for all the offences alleged against A1 11. 4. The CBI applied to the State Government, leave about the case of A1-Sri BP Acharya to accord sanction to prosecute the petitioner-A11 for the offences punishable under Section 120-B IPC and under Sections 13(2) read with 13(1)(d) 15 of the Act. 5. However subsequently on the memo of CBI stating orders of sanction by the State Government not accorded so far to prosecute Sri B.P. Acharya, IAS (A.1) and the petitioner-LVS(A.11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (SC) : 2001 (1) ALD (Crl.) 798 (SC) and in a case of process issued under Section 204 CrPC was recalled in the expression of the Apex Court in Adalat Prasad v. Rooplal Jinfdal (2004) 7 SCC 338 and as held by the Division Bench expression of this court in a maintenance case restored of dismissed in C. Subrahmanyam v. C. Sumathi 2004 (1) ALT (Crl.) 341 (D.B.) (A.P.) : 2003 (2) ALP (Crl.) 905. Thus, suffice to say the very cognizance order of the later Special Judge on 02.06.2012 to prosecute the petitioner-A.11 for Section 120B IPC without sanction, by review of the previous special judge order of sanction required, is per-se unsustainable and liable to be set aside without going into other merits at the threshold. 7. Later undisputedly the State Government refused on 05.06.2012 to accord sanction to prosecute the petitioner-A.11 for the offences. The proceedings refer the State Govt's. consultation of the union of India by referring to the letter dated 31.01.2012 of the Joint Director, CBI, Hyd, letter dated 22.02.2012 of DoPT, New Pelhi, addressed to the Joint Director, CBI, Hyd, GoAP memo dated 16.03.2012, letter of Sri LVS dated 04.04.2012, GoAP letter dated 20.04.2012 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court and CBI taken up investigation and filed final report and supplemental final reports and Special Judge taken cognizance on the final reports for offences; by referring to letter dated 31.01.2012 of the Joint Director, CBI, Hyd, letter dated 22.02.2012 of DoPT, Delhi, addressed to the Joint Director, CBI, Hyd, GoAP memo dated 16.03.2012, letter of Sri LVS dated 04.04.2012, GoAP letter dated 20.04.2012 to the Joint Director, CBI, Hyd and letter dated 24.04.2012 of the Joint Director, CBI, Hyd, to the GoAP; that the CBI in their report among others made certain allegations against Sri L.V. Subrahmanyam, IAS, former VC MD, APIIC, presently EO, TTD, (petitioner-A.11) to prosecute him for the offences punishable under Section 120-B IPC and under Sections 13(2) read with 13(1)(d) 15 of the Act, mainly alleging that: (i) During the year 2004 when the project was reviewed by the new Government, M/s. Emaar Properties, PJSC, Dubai submitted a revised proposal dated 23.09.2004 and 24.09.2004 proposing to revise the implementation structure of the project. While processing this proposal, the project wing of APIIC had recommended that the price of the land to be conveyed to SP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o debentures at nominal rate of interest. (iii) the lease rentals for the land given for Golf Course were revised to 2% on gross annual revenue for first 33 years and 3% for next 33 years. (iv) Thus the charge of land price has to be seen in proper perspective and dimension. (B) In respect of lease rentals the officer mentioned that the lease rentals for land given for the golf course of 235 acres is being revised to @ 2% on gross annual revenue for the first 33 years and 3% for further 33 years. The asset which is fully developed will revert to government after 66 years. The above note was approved by the Government. The Minister of Industries also signed on file. Hence there was no mistake that happened in recording the discussions that took place. The Finance Department mentioned that after the project turns viable the lease rentals issue needs a re-look. Lease rentals only flows into the revenues of the concerned SPVs and cannot be taken as revenue to the Government. This aspect has not been understood by the CBI and therefore they feared that the loss that is possible after 33 years by omitting this second slab of 3% of Gross Annual Revenue. This is a dangerous a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Sections 13(2) read with 13(1)(d) 15 of the Act, by referring to the PIL, registration of crime by CBI on court direction with reference to the facts against M/s. Emaar Properties etc., and the MOU between APIIC and M/s. Emaar Properties and SPVs 1 to 3; saying while LVS was working as VC MD, APIIC, GoAP, during September 2003 to May 2005, modalities/implementation structure of the integrated project was finalized by GoAP on recommendation of APIIC and LVS was required to ensure the execution/implementation of the integrated project as per terms of GO.Ms. No. 359 dated 04.09.2002, the collaboration agreement dated 19.08.2003, G.O.Ms. No. 14 dt. 11.01.2005 and G.O.Ms. No. 22 dated 27.01.2005 issued by I C Dept., GoAP and supplemental agreement dated 19.04.2005 executed between APIIC and M/s. Emaar Properties, PJSC, Dubai. 13(b) The sanction order so far as against him from Paras 8 to 18 reads as follows: 8. The Memorandum and Articles of Association in respect of M/s. EHTPL and Cyberabad Convention Centre were forwarded to Sri LVS on 15.11.2003. The Memorandum and Articles of Association so forwarded were not in conformity with the Collaboration Agreement but Sri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conspiracy with M/s. Emaar properties PJSC, Dubai, while moving a proposal dated 19.01.2005 to the Industries and Commerce Department recommended a lease rentals of 2% from Golf Course confining to the period of initial 33 years and remained silent with regard to the lease rentals for the remaining 33 years, though the GoAP while issuing G.O.Ms. No. 14 had made a provision for increasing the lease rental from 2% to 3% after expiry of initial lease period of 33 years. Shri K. Viswesvara Rao, the then Principal Secretary, Industries and Commerce (I C), GoAP in furtherance of the conspiracy issued GO Ms No. 22 dated 27.01.2005 in which the Developer was to pay lease rentals @ 2% for the period of 33 years and revert the assets to APIIC on expiry of the lease period of 66 years without making provision for payment of lease rentals of 3% for the remaining period of 33 years. However, this anomaly was raised by the Minister for Major Industries subsequent to the issuance of G.O.Ms. No. 22 and finally as per the approval of the then Chief Minister a provision for increasing the lease rental from 2% to 3% for the further period of 33 years was made in the Supplementary Agreement; 12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were sold by Shri Koneru Rajendra Prasad and Shri T Ranga Rao, Director of M/s. Stylish Holmes Real Estates Pvt. Ltd. However, Shri LV Subrahmanyam did not object to the sale villa plots by Shri Koneru Rajendra Prasad; 15. And whereas, that in the proposal mooted to Municipal Administration Urban Development (MA UD) Department vide letter dated 31.03.2005, Shri LV Subrahmanyam mentioned that the Government (I C Department) had agreed vide GO Ms No. 14 dated 11.01.2005 for exemption from payment of conversion fee for change of land by APIIC/Emaar Properties, which was factually incorrect. The fact remains that while issuing GO Ms No. 14 the GoAP had only agreed to look into the matter of exemption of conversion charges separately and not agreed for exemption per se as mentioned by Shri LV Subrahmanyam. Basing on the recommendedmade by Shri LV Subrahmanyam, the MA UD Department, GoAP granted exemption of conversion charges resulting in loss of revenue to the Government exchequer; 16. And whereas, that M/s. Emaar Properties PJSC, Dubai vide reference dated 02.05.2005 had mooted a proposal to the VC MD, APIIC and marked a copy to the Principal Secretary, Industries and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of the developments taken place and the same is not even a proposal. Further the price already fixed by the Government by its order way back in 2002 that continued without alteration and there was already an excess of equity with ₹ 25,00,00/- per acre rate. The CBI and the learned Special Judge failed to see that the land value is of utmost relevance for the purpose of equity calculation and the actual benefit from the development will accrue later with creation of project component when increase of the land value can be realized. It is also contended that the Government proposed to provide land to developers in mega project running into 100's of acres by fixing rates on acreage basis and in respect of allotment of plots in lay out on square yard or square meter basis and as such, the rate given to Industrial units at Manikonda and to Emaar Properties cannot be compared. In fact undeveloped lands are given to the developer, the developer is expected to incur infrastructure cost and APIIC usually incurs in providing internal roads, external road connectivity, power supply installations, power distribution systems, water supply storage and distribution, rain (storm) wat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the charges, which is contrary to law and outcome of non-application of mind and the learned Special Judge also should have considered the same apart from the fact that earlier already the State Government when not accorded sanction by its refusal, the proceedings against the petitioner will not survive much less to take cognizance from the subsequent proceedings of sanction by Central Government and the learned Special Judge also has no power of review for the earlier decision taken of sanction required on 16.03.2012 for subsequently taking of cognizance of IPC offence even apart from subsequent to refusal of sanction by the State Government to take cognizance again. It is also contended that the CBI and the learned Special Judge were erred in saying that statement supposedly made by Chamundeswaranath about the advice received from petitioner about purchase of villa. As partners in the projects, the petitioner was aware of the development that was envisioned at the project place. Therefore, even assuming Chamundeswaranath was in fact advised to go and meet a concerned person, it was sharing of information which is in public domain and attributing criminal conspiracy from that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso by impugning once the State Government being the competent authority rightly having considered refused sanction to prosecute him, the CBI applying again to the Central Government and obtaining of sanction is an abuse of process and uncalled for and the sanction accorded by the Central Government to prosecute him is without consideration of the material and even ignoring the sanction refusal by the State Government already and for no even any additional material by simply reproducing what the charge sheet contents against him speaks which investigation is lack of credibility and with no any basis to say he is liable for any offence for he did not act independently but for as per the decision taken by the Government headed by the Minister concerned and the Committee of Ministers and thereby the prosecution is unsustainable for want of valid sanction and also for lack of merits and the proceedings are liable to be quashed against him for he was never a privy with any other accused much less to benefit any other accused to the loss of the Government dishonestly and there is no any misconduct on his part much less criminal misconduct to implicate him in any criminal case for any cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... konda. The land extent underwent changes and agenda was published ultimately. In response to it, though M/s. Emaar Properties-Dubai, M/s. IOI Corporation, Berhand-Malasia, M/s. L T Chennai, M/s. Shapoorji Palonji Co. Ltd-Mumbai and M/s. Som Asia Ltd-Hongkong came forward; among them, EOI of M/s. Emaar Properties-Dubai, M/s. IOI Corporation and M/s. L T were short listed by a Committee for sending RFP and of whom though the deadline was extended only M/s. Emaar Properties-PJSC-Dubai has given the proposal and quoted price of ₹ 29 lakhs per acre for outright purchase of the land from the Government. RFP for Convention Centre. Hotel. Golf Course and Villas were approved therefrom by the then Chief Minister of the State on 26.09.2001. Thereafter Government issued orders vide G.O.Ms. No. 359 Industries and Commerce (INF) Department, dated 04.09.2002, for establishing International Convention Centre and Golf Course along with multi-use land development and hotel at Manikonda with APIIC as Nodal Agency. 18(c) It is crystal clear from the above that the land by then no way costs even on outright sale in open market more than ₹ 29 lakhs per acre, that too for such an un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Andhra Pradesh had proposed to establish an integrated project which includes an International standard Convection Centre, a Star Hotel. Golf Course and Villas. Government of Andhra Pradesh has designated Andhra Pradesh Industrial Infrastructure Corporation Limited (APIIC) as the nodal agency to develop and implement the integrated project. The new facility would cater to the potential tourist traffic arising from conventions and congresses. The Golf Course would also enhance the value proposition for Hyderabad as a tourist-cum-business. The Golf Course would also enhance the value proposition for Hyderabad as a tourist-cum-business designation for international and domestic travellers. The project would thus be a major tourist-cum-business infrastructure asset for the State. (2). The Andhra Pradesh Industrial Infrastructure Corporation Limited (APIIC) has sent detailed proposals through the reference read above stating that it has received a bid from M/s. Emaar Properties. PJSC. Dubai for development of the Integrated project. Under the directions of the Infrastructure Authority (IA), Andhra Pradesh Industrial Infrastructure Corporation Limited (APIIC) has discussed the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NDUSTRIAL PROMOTION The annexure referred in para 5 of the G.O. supra speaks-the project comprises of Convection Center, Hotel, Golf Course, Multiuse Development and extent of land and location respectively is for Golf Course: 235 acres, multi-use: 285 acres and un-useable land: 15 acres including water bodies at Manikonda total 535 acres and so far as Convention centre and hotel to set up at NAC grounds by lease and for that in Manikonda but for 80 to 90 acres of land required to be acquired by the APIIC remaining is available. The annexure clause 3(1) further reads that land for multiuse development for Villas, Housing. Commercial development including common areas for roads is on sale basis at ₹ 29 lakhs per acre to Emaar concerned, it is on lease basis with up front cost of 1.45 lakhs per acre deposit capitalized as equity in the SPVs and an annuity as 2% of annual gross turn over on all Golf Course components for a period of 66 years and in order to provide and eventuality where the compensation value is increased, the amount to be paid for acquired land may be ₹ 29 lakhs per acre or the cost of the land acquisition, which ever is higher. Annexure 3 clause (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngaged in development of large projects comprising of construction of residential and commercial properties, golf course, hotels and management of convention centers and exhibition halls and both agreed to enter into collaboration/Joint Venture Agreement (JVA) in order to synergies their respective strengths to develop the city of Hyderabad in the State as a complete destination of choice of business in India and overseas. APIIC also desires to enhance and develop the city of Hyderabad is a tourist and leisure destination for resident and non-resident Indian tourists and for that purpose entered into MOU, dated 06.11.2002, where under parties reached an understanding that the JVA should be formalized. APIIC and Emaar reached an agreement in relation to the structure of JVA and the main terms and conditions relating thereto and consequently agreed to a broad frame-work to organize, promote and operate two JVCs and participate in their share capital contains in the terms of agreement. 18(h) The collaboration agreement contain terms agreed as requested 1 to 6 of which Article-I contains definitions, Article-II Collaboration and Integrated Project, Article-III Joint Venture Companie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per shall at its description assign its rights towards development, management and operations of the integrated project to other parties through appropriate and suitable mechanism. Clause 2.4(vi) speaks the developer agrees to enter into a facility management agreement with SPV1 and SPV2 for the upkeep and maintenance of the GCMU until such time that the facility management service is financially viable for the developer. Clause 2.4(x) speaks the developer shall, at its discretion assigned its rights towards development, management and operations of the integrated project to other parties through appropriate and suitable mechanism with an in-principle approval by APIIC, not to be unreasonably with held. In Article-III joint venture companies, that 3.2 SPV-1 activities shall be as described in article 2.2.1 and SPV2 activities shall be described as 2.2.2 referred supra. The initial equity share capital of SPVI so far as APIIC is 26% and developer is 74%, whereas in SPV2, APIIC is 49% and developer is 51% as referred supra. Article VI clause 2(f) speaks the developer will operate and maintain the Integrate Project in accordance with the industry norms and practice. In the event ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were conveyed to the Government by the VC MP of APIIC in July 2002 to enter into MOU with Etnaar-PJSC-Dubai by the then Sri K.V.S. Prasad. VC MP of APIIC. 18(n) The file notings were continued to the earlier single file Note No. 81 (of 2000), dated 10.07.2002 and the subsequent authorization, dated 22.07.2002 supra, by Principal Secretary-cum-Commissioner of Industries Sri Jainder Singh, IAS, having raised queries on Note No. 81, dated 10.07.2002 and marked it to Sri M.V. Prasad. 18(o) Later G.O.Ms. No. 359 issued dated 04.09.2002, where under the APIIC is authorized only to act as a Nodal Agency by fixing the land cost at ₹ 29 lakhs per acre of the existing land of the Government and for acquisition of the additional extent at such rate or actual cost of acquisition, as the case may be and the Government authorized APIIC to enter into MOU with Emaar dated 22.07.2002 and the Collaboration Agreement to enter with Emaar and APIIC was approved by the Cabinet Sub-committee on 28.06.2003 and the Collaboration Agreement was consequently entered between the APIIC and Emaar on 19.08.2003 as referred supra. 18(p) Undisputedly the petitioner-A.11-Sri LV Subrahmanyam wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C from 49% to 26% and increased with Emaar from 51 % equity to 74%) Accordingly, Emaar furnished the revised proposals in the letters, dated 23.09.2004 and 24.09.2004 referred supra for confirmation of the same by APIIC to ensure that the work at Project is not delayed. The note further speaks that some of the terms indicated in the revised proposal requires specific approval/consent of Government viz.. 100% exemption from payment of Stamp Duty and Registration Fees for all lands; APIIC has to ensure that all the lands transferred to the SPVs and the Project was declared as Tourism Project vide G.O.Ms. No. 359 supra, dated 04.09.2002, and the incentives announced for Tourism Projects, vide G.O.Ms. No. 34, dated 09.02.2001, are applicable for exemption from 70% of Stamp Duty and Registration Fees. However, sought to provide 100% exemption by issuing necessary G.O. as point No. 1 and the Point No. 2 speaks for transfer of allotment of land that Urdu University land of 47 acres to be transferred by October 2004 and patta land of 81.55 acres to be transferred by December 2004, whereas, acquisition of patta land is under Court litigation. However, APIIC has already filed Expedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Township Pvt. Ltd. (EHTPL) for development Township project at Manikonda; SPV-2: Boulder Hills Leisure Pvt. Ltd. (BHLPL) and newly added SPV for development of Golf Course and Boutique Resort Hotel at Manikonda; and SPV-3: Cyberabad Convention Centre Pvt. Ltd. (CCCPL) for development of Convention Centre and Business Hotel at NAC grounds. In view of above changes, the Collaboration Agreement executed on 09.08.2003 is proposed to be rescinded. Point No. 7 speaks shifting of HT lines. APIIC shall be responsible for shifting IIT lines from both the Projects i.e., Manikonda and NAC grounds. APIIC has already requested Government of Andhra Pradesh to provide funds from IIDF for shifting of HT lines from project site at Manikonda. There is a requisite of shifting of IIT lines at NAC grounds also for which Government has to provide funds under IIDF or any other source to APIIC. It is submitted for kind perusal and for necessary orders by the Executive Director-I of APIIC and Senior Personal Manager and MP of APIIC. Above Note was put up by Senior Personal Manager on 05.10.2004. There is a written note underneath the above by the VC MP on 05.10.2004 which reads: 1. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Jagannathan was again reminded today on telephone to send his staff to discuss the above mentioned issues in para 1 supra. (3). ED II, SM (D) will discuss on 25th and 26th on these issues with Emaar representatives and bring to record clarifications needed. Clarifications were already sought from Emaar on debentures. (4). It is important that all the terms in M.O.U. be gone through meticulously and closed by APIIC and Emaar in the near future. After signature of VC and MP dated 18.10.2004 there is a note of ED-I that-we prepare accordingly on the issues raised. It was signed on 19.10.2004. It is submitted there from as follows: Submitted: As scheduled, discussions have taken place with Emaar Properties representatives on 25th and 26th October 2004. Consequent to the discussions, Emaar Properties have furnished certain clarifications on the issues raised during the discussions. (1). It is stated that the project cost has been revised due to escalation in the cost of material and also due to changes in specifications. The details of changes in specification and appropriate revision in the project cost have been furnished. (3). Amount apportion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation is not rigidity argued by APIIC/Government. Hence, the land price is not enhanced as the project would suffer a doubly jeopardy of increased project cost and due to reduced government equality an additional debt burden. Favourable orders from Government on this price of a land at ₹ 29 lakhs an acre are recommended. 4. Even on lease rentals, the issue has been discussed and 2% of Gross Annual Revenue and other details as at para 4 on page 8 of note file be perused. The developer expressed his inability to increase thus any further. 5. Emaar are incorporating these principles into a supplementary memorandum of understanding and sending to APIIC by 8.11.2004. Today Mr. Essam Galadari. ED (Projects) Emaar called on VC and MP and explained that the contracts have to be awarded for both convention centre and township project to meet the stiff deadlines. He was also worried about the increasing project cost due to this delay. He was once again assured, as was done before, to go ahead with awarding works as the convection centre is an absolute necessity for the upcoming Annual Finance Ministers conference thus the two works will be awarded by Emaar. Lands will be handed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akhs at 2% of the Gross Annual Revenue. This revenue appears to be very small and a higher percentage may be fixed at lease after the project has achieved viability. At 'd' of page-13 n.f. it is proposed to adjust the excess land value as secured Debentures carrying 2% interest. Here also the prevailing market interest on debentures may be adopted after the project achieves viability. As already indicated by the APIIC, it should be made very clear that the government would not be participating in the housing project as this point has not been mentioned in page-14 while summarizing the improvements brought into the project. Sd/- (T.S. APPA RAO) PRL. FINANCE SECRETARY(R E) The clarification given by Prl. Sec. (l C), Dt. 18.11.2004 is that: Regarding A above: As per the collaboration agreement, the SPV will pay to APIIC amount equal to 2% of gross annual revenue generated not including life membership and other long term and academy memberships. We have improved it to 3% during second half of lease period. It is classified that the revenues of SPV are not going to be represented to his company. These will be utilized solely for improvement of the faciliti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revised Supp. Agreement may be prepared....Sd/- Dt. 04.12.2004 Submitted: Basing on the approvals accorded by Government, a draft Supplementary Agreement to be executed between AFHC and Emaar Properties is prepared and placed below for approval. Further, as instructed a draft Amendment G.O. is also put up for approval. Sd/- DPM(D); Sd/- Sd/- Sd/- Dt. 07.12.2004, SPM i/c, 07.12, M (Law), dt.08.12, F.D. Submitted for approval. All the important aspects of this P P Partnership have since been incorporated. Sd/- (VC MD APIIC), Dt. 13.12.2004 Sd/- Prl.Secy. (I C) PFS (R E):- Law Dept. may be consulted in first place. Sd/- DT.14.12 M(MI) Sd/- Prl.Secy. (I C) As stated in Clause 8(iii)(c) site map may be annexed to the draft supplementary agreement. Subject to above, the draft supplementary agreement as agreed by the VC MD APIIC is formally in order subject to slight altercations indicated in pencil thereon. The draft supplementary agreement may also be shown to Finance Department 23.12.2004 Secretary Legal Affairs Prl. Secretary (Ind. Com.) Law U.O. No. 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P Industrial Infrastructure Corporation Ltd. (APIIC) is nodal Agency for implementation of the Project and guidelines were issued in the Annexure of the first read above. The APIIC was instructed to take necessary action to implement the project. 2. In the reference 2nd read above the VC MD, APIIC Ltd., while submitting a proposal under SFS, in regard to setting up an Integrated Project including an International Convention Centre and business Hotel in NAC grounds and Township projects with Golf Course Multi use development in Manikonda, Ranga Reddy District and requested to issue suitable orders on the following issues. (a) Implementation structure of the Integrated Project: I. Development of Township Project at Manikonda Emaar Hills Township Private Limited (EHTPL) as SPV-1. II. Development of Golf Course. Golf Club, resort hotel etc. at Manikonda Boulder Hills Leisure Private Ltd. (BHPL) as SPV-2. III. Development of Convention Centre (6.000 Seating) and Business Hotel at NAC Grounds. Izzatnagar Cyberabad Convention Centre Private Ltd. (CCCPL) as SPV-3. (b) Equity Structure: SPV-1: Emaar Properties 74% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o and on Fast Track instead of trenches in accordance with the achievements of mile stones as original envisaged. (j) The cost of shifting of HT lines from Convention Centre Project site at NAC grounds would also be met from the Industrial Infrastructure Development Fund. 3. Government after careful examination, decides to consider the above improvements brought into the Integrated Project including an International Convention Centre and Business Hotel in NAC grounds and Township project with Golf Course Multi use development in Manikonda. Ranga Reddy District, duly modifying the orders issued in the 1st read above to the extent of the above improvements and approve a Draft Supplementary Agreement to be executed between the APIIC and Emaar Properties. PJSC. UAE. 4. The Vice-Chairman and Managing Director, Andhra Pradesh Industrial Infrastructure Corporation Ltd., Hyderabad is authorized to enter into a Supplementary Agreement to the Collaboration Agreement executed on 19th August 2003. Copy of the agreement may be sent to Government for record. 5. Andhra Pradesh Industrial Infrastructure Corporation Ltd., should closely monitor the development of above three (3) pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l not affect any of the terms and conditions mentioned in the GO and the same can be approved by Government. If approved the clauses of the Supplementary Agreement will suitable be modified and executed. The VC MD, APIIC Ltd. has requested the Government to issue necessary modifications orders duly effecting the modifications to the clause No. 2(d) (e) of the G.O.Ms. No. 14 Ind. Com. (IP) Department, dated 11.01.2005. In this connection, it is submitted that Government have issued orders in G.O.Ms. No. 14 dated 11.01.2005, duly modifying the orders issued in the G.O.Ms. No. 359 Industries Commerce (INF) Department dated 04.09.2002 to bring in the latest improvements/changes taken place in implementing the Integrated Township with Golf Course project at Manikonda and Convention Centre with Business hotel project at N AC grounds. In view of the above and in the light of the request of the VC MD, APIIC Ltd., it is submitted for orders whether the amendment to the G.O.Ms. No. 14 dated 11.01.2005 may be issued. Subject to orders a draft amendment to the clause of 2(d) (e) of G.O.Ms. No. 14 dated 11.01.2005 is put up below for approval. 18(x) The Minister of Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Special Judge and the Central Govt., in according of sanction failed to appreciate the facts and the nature of duties of the VC MD, APIIC and should have considered that there is no conspiracy between the petitioner with other accused much less to achieve any illegal gain and there is no even any allegation of petitioner joined hands with any persons and if so on what basis, to make a baseless allegation of conspiracy against the petitioner or any criminal misconduct on the part of the petitioner-A11. 20. The CBI and the learned Special Judge should have considered that in the letter dated 31.03.2005 written by the petitioner-A11 to the Secretary, MA UD, mentioning Government in I CD agreed, vide-G.O.Ms. No. 14 dated 11.01.2005 of I CD, for exemption from payment of conversion fee for change of land stating orders will be issued separately. Further the Secretary of MA UD did not make any comment on the file and simply forwarded to the Minister for MA UD, who in turn marked the file to then Chief Minister and finally then Chief Minister approved proposal for waiving conversion charges in respect of 15 acres of land on 10.05.2005 after no objections received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier already the State Government when not accorded sanction by its refusal on 05.06.2012, the proceedings against the petitioner will not survive much less to take cognizance from the subsequent proceedings of sanction by Central Government. 23. Even coming to M/s. Emaar Properties' agreement with M/s. Stylish Homes dated 20.01.2005, on behalf of SPV-I selling 100 villa plots at an aggregate price of ₹ 5,000/- per sq. yard for a period of five years prior to formation of SPV-I was as per the revised structure under the State policy and even before EHTPL was brought into picture, leave apart the clauses in G.O.Ms. No. 359 supra. Apart from it, the conveyance deed under which APIIC transferred 258.36 acres of land to EHTPL was dated 28.12.2005 and registered on 12.10.2006 for an aggregate value of ₹ 74,92,44,000/-, which was even subsequent to the transfer of the petitioner-A11-Shri LV Subrahmanyam in May, 2005 from APIIC and as per the sale consideration, 26% equity of ₹ 1,70,03,070/- in SPV-I was allotted to APIIC and out of the balance consideration, similar 26% equity was credited in SPVs-II HI. 24. Even coming to the statement supposedly made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e precautions to be taken from the guidelines to be followed in case of a public servant before registration of crime as per the expressions of the Apex Court. In P. Sirajuddin Etc. v. State of Madras AIR 1971 SC 520 the Apex Court held that before a public servant, whatever be his status, is publicly charged with acts, of dishonesty which amount to serious misdemeanor or misconduct of the type alleged in the case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person. specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to. in general. If the, Government had set up a Vigilance and Anti-Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an enquiry by officers of this department but any such enquiry must proceed in a fair and reasonable manner. The enquiring officer must not act under any pre-conceived idea of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 6 IPC as follows: On a true and fair construction of the provisions of Sec. 6 IPC, considered in the context of the legislative scheme qua the several provisions of the IPC, it is apparent that Section 6 explicates a convenient legislative formula to avoid reproduction of lengthy exceptions in the description of the each of the several offences. Consequently all offences enumerated in the Indian Penal Code must be read subject to the provisions in Chapter IV relating to General Exceptions (Sections 76 to 106 IPC). Therefore, when an act falls within any of these exceptions, by virtue of the provisions of Sec.6, the accused must be accorded the benefit of the appropriate General Exception even though such exception is not specifically indicated in the description of the offence elsewhere in the IPC. In Seriyal Udayar v. State of Tamil Nadu (1987) 2 SCC 359 (per Oza, J) the Supreme Court observed that even if on the basis of the material on record the right of private defence of the accused-appellant is not established, still the material produced in cross-examination and the circumstances discussed (by the court) do indicate that the incident might have happened in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecial justifying circumstances however that harm is outweighed by the need to avoid a greater harm or to further a larger societal interest. Self-defense or defensive force justifications are all based on a threat in response to which the defensive force is justified. They are often distinguished by one another by the nature of the interest threatened. Statutes too often make special alterations or exceptions to the basic principle of defensive force justification depending on the interests threatened. The general exceptions enumerated in Sections 96 to 106 in Chapter IV of the IPC fall within this category of defences. It requires to be noticed that Article 261 of the Constitution enjoins that Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State. The appointment of a judge is a public act and the particulars and designation of appointment as a judge are matters of public record. Even if a mischievous complaint is made that a named individual masquerading as a judge had passed an order; whether the named individual is a judge is an easily discoverable public act and a matter of pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard by accepting the view in Reg. v. Prince Law Rep. 2 C.C.R.154, P. 170-172 that: The case of Reg. v. Prince, when rightly considered, is in favour of prisoner. The result of that decision is in no sense to displace the Doctrine of necessity for a mens rea as a general proposition in criminal law, atleast in cases where the act is done under a belief of the existence of a state of facts which, if it really existed, would render the act not criminal nor immoral.......It is however undoubtedly a principle of English Criminal Law that ordinarily speaking a crime is not committed if the mind of the person doing the act in question be innocent. It is a principle of natural justice and of our law says Lord Kenvon CJ that actus non facit rem. nisi mens sit rea. The intent and act must both conquer to constitute the crime. The guilt intent is not necessarily that of intending the very act or thing done and prohibited by common or statute law, but it must at least be the intention to do something wrong. That intention may belong to one or other of the two classes. It may be to do a thing wrong in itself and apart from positive law, or it may be to do a thing merely prohibited by statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he prosecution proposes to rely are woefully inadequate for connecting the respondents with the crime, howsoever skillfully one may attempt to weave those bits into a presentable whole. There is no material on the record on which any Tribunal could reasonably convict the respondents for any offence connected with the assault on the complainant. 33(b) In PKM Selvam and others v. State MANU/TN/2746/2015, the Madras High Court by relying upon the expression of the Apex Court in Central Bureau of Investigation, Hyderabad v. K. Narayana Rao: (2012) 9 SCC 512 held that an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent and acceptable evidence. 33(c) In Ch. Laxminarayana v. The State of Telangana MANU/AP/0303/2017, this Court held at Para 10 that, there has to be cogent and convincing evidence against each of the accused. It is one who commits an over act with knowledge of conspiracy is guilty and one who tacitly consents to the object of the conspiracy can also be made liable. The Court in appreciation must take care to see that the acts and conduct of the parties must be conscious and cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or high price, despite the Secretary concerned of the State Govt. raised strong objection for the proposal and even Secretary. Ministry of Coal raised objection also on the poor quality by its ignorance and even by deviation of conditions of Central Government for rooting through it and the discharge by trial court held unsustainable, that too when all concerned officials were charged. 33(g) The scope of Section 10 Evidence Act considered is by relying upon the observations of the three Judge Bench of the Apex Court in State v. Nalini 1999 (2) ALT (Crl.) 1 (SC) : (1999) 5 SCC 253 that the first condition which is almost the opening lock of that provision is the existence of 'reasonable ground to believe' that the conspirators have conspired together. This condition will be satisfied even when there is some prima facie evidence to show that there was such a criminal conspiracy. If the aforesaid preliminary condition is fulfilled then anything said by one of the conspirators becomes substantive evidence against the other, provided that should have been a statement in reference to their common intention'. 33(h) In Ram Narain Poply v. CBI 2003 CrLJ 4801, the three Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual commission of the offence in furtherance of the alleged conspiracy. 33(k) In Jayendra Saraswati Swamigal v. State of T.N. (2005) 2 SCC 13 the three Judge Bench of the Apex Court held at Para 12 as follows: 12.........Therefore, there should first be a prima facie evidence that the person was a party to the conspiracy before his acts or statements can be used against his coconspirators....... The correct import of Section 10 was explained by the Judicial Committee of the Privy Council in Mirza Akbar v. King Emperor MR 1940 PC 176 as under: The words of S.10 are not capable of being widely construed so as to include a statement made by one conspirator in the absence of the other with reference to past acts done in the actual course of carrying out the conspiracy, after it has been completed. The words common intention signifies a common intention existing at the time when the thing was said, done or written by one of them. Things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. But it would be a very different matter to hold that any narrative or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cious and clear enough to infer their concurrence as to the common design and its execution. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability cannot be fastened by way of analogy or by extension of a common law principle. When men enter into an agreement for an unlawful end, they become ad-hoc agents for one another, and have made a partnership in crime. Beyond the mere fact of agreement, the necessary mens rea for proving that a person is guilty of conspiring to commit an offence be established. 33(m) The Apex Court in Maharashtra State Electricity Distribution Co. Ltd. v. Datar Switchgear Ltd. (2010) 10 SCC 479 categorically held that merely on the basis of the appellant's status in the company, it could not be presumed that it is the appellant who became a party to the alleged conspiracy. 33(n) The Constitution Bench expression of the Apex Court in Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra AIR 1965 SC 682 way back observed that the offence of conspiracy has to b. established like any other offence but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rought on record to arrive at a finding as to whether the charges of the criminal conspiracy have been proved or not, must always bear in mind that a conspiracy is hatched in secrecy and it is difficult, if not impossible, to obtain direct evidence to establish the same. The manner and circumstances in which the offences have been committed and the accused persons took part are relevant. For the said purpose, it is necessary to prove that the propounders had expressly agreed to it or caused it to be done, and it may also be proved by adduction of circumstantial evidence and/or by necessary implication-[See Mohammad Usman supra]. 33(q) The following passage from Russell on Crimes (12th Edn. Vol 1) cited by Jagannatha Shetty, J in Kehar Singh supra brings out the legal position succinctly: The gist of the offence of conspiracy then lies, not in doing the act, or affecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge or even discussion, of the plan is not, per se enough Further it was noted in Kehar Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for proving a charge of conspiracy, it is not necessary that all the conspirators know each and every details of the conspiracy so long as they are co-participators in the main object of conspiracy. It is also not necessary that all the conspirators should participate from the inception of conspiracy to its end. If there is unity of object or purpose, all participating at different stages of the crime will be guilty of conspiracy. 33(t) In Ajay Agarwal v. Union of India AIR 1993 SC 1637, it was held that (2.03) Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy.(2.05) An agreement between two or more persons to do an illegal act or legal acts by illegal means is criminal conspiracy. If the agreement is not an agreement to commit an offence, it does not amount to conspiracy unless it is followed up by an overt act done by one or more persons in furtherance of the agreement. 33(u) In Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar AIR 1962 SC 876, the Apex Court Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racting stones from some other mines for being used in the construction of dam. 46. We would proceed on the basis that two divergent opinions on the construction of the contract in the light of the stand taken by the World Bank as also the earlier decision taken by the State was possible. That, however, would not mean that a fresh decision could not have been taken keeping in view the exigencies of the situation. A decision to that effect was not taken only by one officer or one authority. Each one of the authorities was ad idem in their view in the decision making process. Even the Financial Adviser who was an independent person and who had nothing to do with the implementation of the project made recommendations in favour of the contractors stating that if not in law but in equity they were entitled to the additional amount. 47. From the materials available on record, it is crystal clear that the decision taken was a collective one. The decision was required to be taken in the exigency of the situation. It may be an error of judgment but then no material has been brought on record to show that they did so for causing any wrongful gain to themselves or to a third party or fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en if nothing further is done the agreement would give rise to a criminal conspiracy. Its ingredients are (i) an agreement between two or more persons; (ii) an agreement must relate to doing or causing to be done either (a) an illegal act; (b) an act which is not illegal in itself but is done by illegal means. What is, therefore, necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means. 52. While saying so, we are not oblivious of the fact that often conspiracy is hatched in secrecy and for proving the said offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence. In Kehar Singh and others v. State (Delhi Administration), (1988) 3 SCC 609 at 731, this Court has quoted the following passage from Russell on Crimes (12th Edn. Vol 1): The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the then Secretary Mr. M.S. Billore retires so as to enable him to obtain opinion of another officer would prima facie establish that he intended to cause pecuniary gain to the respondent Nos. 8, 9 and 10. We have noticed hereinbefore that the Minister in his note dated 4.11.1991 did not make any recommendation. He merely lamented the manner in which the former Secretary Mr. M.S. Billore acted as prior thereto, the said authority himself for all intent and purport had accepted the recommendations of the authorities incharge of construction of the dam including the Chief Engineer. He constituted a committee. He obtained the opinion of the Financial Adviser. If upon consideration of the entire materials on record, independent opinion had been rendered and recommendations were made, it is difficult to comprehend as to how that by itself would constitute a criminal misconduct or leads to the conclusion of hatching any criminal conspiracy. Recommendations made by the Committee or the opinion rendered by an independent officer like Financial Adviser need not be acted upon. It was for the State to take a decision. Such a decision was required to be taken on the basis of the materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartmental proceeding also faced same charges including the charge of being a party to the larger conspiracy. 58. There cannot be any doubt whatsoever that the tests for the purpose of framing of charge and the one for recording a judgment of conviction are different. A distinction must be borne in mind that whereas at the time of framing of the charge, the court may take into consideration the fact as to whether the accused might have committed the offence or not; at the time of recording a judgment of conviction, the prosecution is required to prove beyond reasonable doubt that the accused has committed the offence. 59. In this case, the probative value of the materials on record has not been gone into. The materials brought on record have been accepted as true at this stage. It is true that at this stage even a defence of an accused cannot be considered. But, we are unable to persuade ourselves to agree with the submission of Mr. Tulsi that where the entire materials collected during investigation have been placed before the court as part of the chargesheet the court at the time of framing of the charge could only look to those materials whereupon the prosecution inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 36(b) In R. v. Griffith 1965 (2) AER 448, it has been observed of the Court of Appeal in England has laid down thus: 9. The practice of adding what may be called a rolled up conspiracy charge to a number of counts of substantive offences has become common. We express the very strong hope that this practice will now cease and that the courts will never again have to struggle with this type of case, where it becomes almost impossible to explain to a jury that evidence inadmissible against the accused on the substantive count may be admissible against him on the conspiracy count once he is shown to be a conspirator. 36(c) It is worthy of note that a mere conspiracy or a combination of persons for the doing of a thing does not amount to an abetment. Something more is necessary; namely, an act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing for which the conspiracy was made. 36(d) As held in Pramathanath supra, once the gist of the offence of criminal conspiracy is in the agreement to do an illegal act or an act which is not illegal by illegal means and where, however, the agreement is to do an illegal act which is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy as held by the Apex Court in the decisions supra, for nothing that can be shown even of all means adopted and illegal acts done in furtherance of the object of conspiracy hatched from any circumstances relating to the period prior in time than the notes put up by him that is stated as actual commission of the alleged offence much less to say same in furtherance of the alleged conspiracy to draw any inference of the alleged conspiracy. Undisputedly from the settled legal position, there must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances give rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. For that the acts and conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. The innocuous, innocent or inadv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefrom suffice to say that when the material itself before the Court shows the accused is entitled to the protection from prosecution for the alleged offences from the case falls under any of the general or special exceptions provided in law in saying no offence made out, same can be considered within its scope as laid down by the expressions supra. Apart from it in Rukmini Narvekar v. Vijay Sataredkar (2008) 4 SCC 1 by explaining the earlier 3JB expression in State of Orissa v. Devenranath Pathi 2005 (1) ALT (Crl.) 198 (SC) : (2005) 1 SCC 568 it was held that where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such rare cases the defence material can be looked into by the Court at the time of framing of the charges or taking cognizance. 39. From the above, apart from Section 120B IPC has not been made out even coming to any attracting of the offence punishable under section 13(2) r/w 13(1)(c) (d) and/or section 15 of the PC Act against the petitioner-A11 and whether there is any valid sanction of the competent authority produced for the cognizance taken and its sust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uniary advantage without any public interest: or (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Explanation.--For the purposes of this section, known sources of income means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine. In the case of State v. A. Parthiban 2007 (2) ALT (Crl.) 93 (SC) : (2006) 11 SCC 473, the Supreme Court held as under: Every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Section 7 of the Act. But if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under Section 13(1)(d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or improper conduct. -[See also Bharat Petroleum Corp. Ltd. v. T.K. Raju, 2006 (3) ALT 29.2 (DN SC) : 2006 (3) SCC 143. 54. Even under the Act, an offence cannot be said to have been committed only because the public servant has obtained either for himself or for any other person any pecuniary advantage. He must do so by abusing his position as public servant or holding office as a public servant. In the latter category of cases, absence of any public interest is a sine qua non. The materials brought on record do not suggest in any manner whatsoever that the respondent Nos. 1 to 7 either had abused their position or had obtained pecuniary advantage for the respondent Nos. 8. 9 and 10 which was wit/tout any public interest. 55. Whether, on the one hand, the dam should be constructed within a time frame fixed by the World Bank is a public interest or whether sticking to the terms of the contract which may lead to abandonment of work by the contractors would be a public interest is a matter over which a decision was required to be taken, particularly when the authorities proceeded on the basis that they had made advertisements and called for the tender on a wrong premise, viz. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nection with the discharge of official duties by the government or the public servant. If such connection exists and the discharge or exercise of the governmental function is prima facie, founded on the bona fide judgment of the public servant, the requirement of sanction will be insisted upon so as to act as a filter to keep at bay any motivated ill-founded and frivolous prosecution against the public servant. 44(b) In State of H.P. v. M.P. Gupta 2004 (1) ALT (Crl.) 236 (SC) : (2004) 2 SCC 349 the Apex Court held that bar under law regarding Court's power to take cognizance as absolute and complete. Hence, court cannot take cognizance of complaint against a public servant unless sanction is obtained from the appropriate authority, if the offence alleged to have been committed was in discharge of official duty. The mandatory character of the protection afforded to a public servant is brought out by the expression. no court shall take cognizance of such offence except with the previous sanction . Use of the words no and 'shall' makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to act in their official capacity the same would attract the provisions of Section 197 of the Code of Criminal Procedure. It was so held by this Court in Sankaran Moitra v. Sadhna Das and another 2006 (2) ALT (Crl.) 224 (SC) : (2006) 4 SCC 584. The question came up for consideration before this Court in Matajog Dobey v. H.C. Bliari AIR 1956 SC 44 : 1955 (2) SCR 9251 wherein it was held: 17. Slightly differing tests have been laid down in the decided cases to ascertain the scope and the meaning of the relevant words occurring in Section 197 of the Code; any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty . But the difference is only in language and not in substance. The offence alleged to have been committed must have something to do, or must be related in some manner with the discharge of official duty. No question of sanction can arise under Section 197 unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act excee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are construed too narrowly, the section will be rendered altogether sterile, for, it is no part of an official duty to commit an offence, and never can be . In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. As pointed out by Ramaswami. J., in Baijnath v. State of M.P.. it is the quality of the act that is important, and if it falls within the scope and range of his official duties, the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted . 18. In sum, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage. , In that case, the appellant therein was charged for commission of an offence of cheating under Sections 420, 467, 468, 471 and 120B IPC. In the factual matrix involved therein, it was held: 29. The effect of sub-sections (3) and (4) of Section 19 of the Act are of considerable significance. In sub-section (3) the stress is on failure of justice and that too in the opinion of the court . In sub-section (4), the stress is on raising the plea at the appropriate time. Significantly, the failure of justice is relatable to error omission or irregularity in the sanction. Therefore, mere error, omission or irregularity in sanction is (sic not) considered fatal unless it has resulted in failure of justice or has been occasioned thereby. Section 19(1) is a matter of procedure and does not go to the root of jurisdiction as observed in para 95 of Narasimha Rao case. Sub-section (3)(c) of Section 19 reduces the rigour of prohibition. In Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusion it is needful to reproduce Section 197 CrPC and Section 19 PC Act with relevant case law. 44(g) Section 197 CrPC with title 'Prosecution of Judges and public servants' reads as follows:- (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: 1 Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al is to be held. 44(h) Section 19 of the PC Act with title Previous sanction necessary for prosecution reads as follows: (1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,-- (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office. (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . State (2013) 1 SCC 205 : 2013 (5) ALT 22.1 (DN SC), held that, sanction under section 197 CrPC is actually not required when the offences committed are under the PC Act......However, if the act complained of covered by the IPC offences is directly connected with his official duty, so that it could be claimed to have been done by virtue of his office, then the sanction would necessarily be required. 44(k) As also held in Subramanium Swamy v. Manmohan Singh and another (2012) 3 SCC 64 : 2012 (4) ALT 43.1 (DN SC) in case where the person is not holding said office as he might have retired superannuated be discharged or dismissed then the question of removing would not arise. 44(l) The same view was expressed in Parkash Singh Badal supra by negating the argument of even though some of the accused persons had ceased to be Ministers, they continued to be the Members of the Legislative Assembly and one of them was a Member of Parliament and as such cognizance could not be taken against them without prior sanction. It was also held that the embargo contained in Section 19(1) of the PC Act operates only against the taking of cognizance by the Court in respect of the offences punisha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by Section 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecution. It should be left to the Government to determine from that point of view the question of the expediency of prosecuting any public servant . 44(q) Above position was also highlighted in R. Balakrishna Pillai supra of 1996 and reiterated in the later expressions in State of M.P. v. M.P. Gupta (supra), State of Orissa through Kumar Raghvendra Singh and others v. Ganesh Chandra Jew (2004) 8 SCC 40 and Shri S.K. Lutshi and another v. Shri Primal Debnath (2004) 8 SCC 31. 44(r) On the scope of sanction whether required or not to decide for prosecution on the acts alleged as offence committed by a public servant and the stage when to raise and the way how to understand the expressions with reference to facts, the Apex Court in N.K. Ganguly v. CBI, New Delhi (2016) 2 SCC 143, while saying a decision is an authority for what it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking cognizance is required in the three situations of, (a) the act complained of attached to the official character of the person doing it; (b) cases in which the official character of the person gave him an opportunity for the commission of the crime; and (c) the offence was committed while the accused was actually engaged in the performance of official duties. It can be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard. No doubt, there must be a reasonable connection between the act and the discharge of official duty to have the protection. If the act complained of is directly concerned with his official duties so that, if questioned it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted. 44( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, 'no court shall take cognizance of such offence except with the previous sanction'. Use of the words 'no' and 'shall' makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. The very cognizance is barred. That is, the complaint cannot be taken notice of. According to Black's Law Dictionary the word 'cognizance' means 'jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine causes'. In common parlance, it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty. 44(x) In the case of General Officers Commanding v. CBI [2012] 5 SCR 599 the Apex Court held that-If the law requires sanction and the court proceeds against a public servant without sanction: the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under Section 197 of CrPC is available to the concerned public servant even after retirement. Therefore, if the matter was considered by the sanctioning authority and the sanction to prosecute was rejected, the Court could not have taken cognizance insofar as the offences punishable under the Indian Penal Code are concerned, even no bar from retirement for the PC Act offences. 45 (b) As laid down by this Court in State of Himachal Pradesh v. Nishant Sareen the recourse in such cases for the prosecuting agency is either to challenge the rejection order of the Sanctioning Authority or to approach it again if there is any fresh material for reconsideration and not otherwise. 45(c) In a very recent Division Bench expression of the Bombay High Court dated 22.12.2017 in Ashok Chavan v. State of Maharashtra on a petition filed by former CM Ashok Chavan challenging the sanction order, held by its allowing that Successor Governor had no jurisdiction to review the earlier order by his predecessor, who had refused sanction sought by the Central Bureau of Investigation. 45(d) In fact in Bhajan Lal supra one of the guidelines for quashing of the proceedings speaks (No. 6 of the 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Indian Administrative Service have been employed in connection with the affairs of the State of Andhra Pradesh sanction of the State Government is thus required for their prosecution not only under section 197(1)(b) Cr.P.C. but also under section 19(1)(b) of the P.C. Act. Having applied to obtain sanction for prosecution from the Government, it is not open to the prosecution to contend that no such sanction is necessary for prosecuting A-2 and A-3. Secondly, having applied for sanction for prosecution of A-2 and A-3 and failed in their attempt to obtain such sanction, it is not open to the CBI to contend that no sanction either under section 197 CrPC or under section 19 PC Act is required for prosecution of A-2 and A-3. The CBI cannot be permitted to take inconsistent stands at different stages. The prosecution cannot blow hot and cold in the same breath. Therefore, this Court is of the opinion that prosecution of A-2 and A-3 is impermissible. 45(j) This Court even earlier to the above in Municipal Corporation of Visakhapatnam v. State of Andhra Pradesh 2010 (1) ALT (Crl.) 459 : 2010 (1) ALD (Crl.) 419 (AP) held that sanction for prosecution under section 197 Cr.P.C. has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion has to be dealt with at the stage of taking cognizance-Even cognizance was taken in ignorance of it or erroneously, once the same comes to the Court's notice at any later stage, a finding to that effect has to be given by the Court and the accused is also entitled to take such plea at any point of time including, even in hearing the appeal before the appellate Court once sanction from competent authority is required under law. When all the mandatory requirements of the statutory formalities not complied with, the cognizance cannot be taken by the Court practically and as such for the non-compliance the entire proceedings vitiate to revert the clock back to pre cognizance stage, if at all to proceed therefrom further. Even a sanction is granted by a person not authorized in law, the same being without jurisdiction and would be a nullity. 45(o) Same is the conclusion from State of Goa v. Babu Thomas 2015 (3) ALT (Crl.) 143 (SC) holding that when sanction is required from the act connected with the duty of the public servant, taking cognizance by a Court without sanction is incompetent and the error was so fundamental that invalidates the proceedings right from the stage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be put under suspension as per Rule 3 by the government of State where such member is serving. The State Government is empowered to suspend and initiate an enquiry as per the provisions of law and file complaint and lodge FIR also against such person. The accused 1 to 3 who were public servants committed criminal misconduct punishable under Sections 13(2) read with 13(1)(f) of the P.C. Act, 1988 and Section 120B of Indian Penal Code. In the final report it is admitted that the Government of India refused to grant sanction to prosecute the petitioner for the offence punishable under the provisions of Prevention of Corruption Act. The petitioner was charge sheeted for the offence punishable under Section 120B IPC alone. Further, Section 197(1) provides that when any person who is or was a Judge or Magistrate or Public Servant not removable from his office save by or with the sanction of the Government is accused of an offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty no court shall take cognizance of such offence except with previous sanction of the Competent Authority. If the accused is employed in connection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the offence qua that person. 45(w) So, the sanction required under Section 197 CrPC and the sanction required under Section 19 PC Act. 1988 are different and distinct. In some cases the Competent Authority may be one and the same. As to who is the Competent Authority to grant sanction under Section 19 of the PC Act, so far as an I.A.S. Officer is concerned as to it the State Government or the Central Government; Section 19 of the 1988 Act itself provides the answer to the above stated questions. 45(x) The Supreme Court in Mohandas v. State of Kerala 2002 (2) KLT 251 (SC) held that: Under Section 19 of the Act no Court can take cognizance of an offence punishable under Sections 7, 10, 11, 13 15 alleged to have been committed by a public servant, except with the previous sanction of the Authority competent to remove the person concerned. In the case in hand, the Secretary (Vigilance) appears to have accorded sanction to prosecute. The appellant's case is that the Secretary (Vigilance) was authorized to grant sanction only on 23rd April, 1994 and there is no order of the State Government making the Secretary (Vigilance) competent to accord sanction prior to the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces against the petitioner-A11 are liable to be quashed not only for want of valid sanction, but also for no merits in the accusations against the petitioner to implicate him as All in the criminal case from the final report of CBI and cognizance order of the Special Judge to ask him to face pre-charge enquiry and trial. 47. In this regard, coming to the contention of the learned Special Public Prosecutor for CBI of any validity or otherwise of the sanction is a matter to consider during trial and premature to go into at this stage, so also for the offences cognizance already taken by the Special Judge and but for leaving to the trial court if at all to frame charges or to discharge, now this court cannot quash the proceedings at this stage for the inherent powers are to be exercised very sparingly and not as a matter of course concerned to consider said powers and limitations in exercise of the inherent powers under section 482 CrPC: 48. The answer to said contention is available from the expression in Ashok Chaturvedi and others v. Shitul H. Chanchani and another (1987) 7 SCC 698 where the Apex Court held that merely because the accused has a right to plead before the trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable.--. 49(c) In Varala Bharath Kumar v. State of Telangana 2017 (3) ALT (Crl.) 351 (SC) : 2017 SAR (Cri) 975 : 2017 (9) SCC 413, it is held at Para 7 that the extraordinary power under Article 226 or inherent power under Section 482 of the Code of Criminal Procedure is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.--------- Of course, no hard and fast rule can be laid in regard to cases in which Court will exercise its extraordinary jurisdiction of quashing proceedings at any stage. 49(d) In Dinesh Dutt Joshi v. State of Rajasthan and another 2001 (2) ALT (Crl.) 285 (SC) : (2001) 8 SCC 570, the Apex Court held that Section 482 does not confer any power but only declares that the High Court possesses inherent powers for the purposes specifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist. 49(g) The principle thus laid down is before issuing a process and taking cognizance the Court has to consider from the existing material whether case falls within the exception and only if not, to say prima facie accusation on a complaint or final report to take cognizance for any criminal if makes out. It is something different of prima facie consideration at pre-cognizance stage to the post-cognizance defence available to the accused under any of the exceptions in detail to make out either from the prosecution material or from any material placed by accused to show he is not liable to be charged to face the ordeal of trial. 49(h) When such is the case, so far as the quash Court under Section 482 CrPC from the accused also entitled to ask by placing any material in defence to consider from facts and circumstances, to subserve the ends of Justice, irrespective of the complaint allegations make out case for taking cognizance, where it deserves for quashing instead of continuing a lame prosecution with no pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to terms and the powers too could not be exercised to stifle a legitimate prosecution and Court should refrain from giving prima facie decision in a case where entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issue involved are of such a magnitude that they cannot be seen in the true perspective without sufficient material, though no hard and fast rule can be laid down for exercise of the extraordinary jurisdiction. It is observed that Court should balance with personal liberty, the societical interest and a warrant for arrest of accused should not be issued without proper scrutiny of facts from complaint or F.I.R. in application of judicial mind and where dispute is a pure civil in nature or from reading of F.I.R. the ingredients of offence are absent, the proceedings can be quashed. 49(n) As held by the Apex Court in Preeti Gupta v. State of Jharkhand 2010 (3) ALT (Crl.) 99 (SC) : AIR 2010 SC 3363 inherent powers are meant to do substantial justice and to prevent abuse of process and in saying the proceedings in complaint taken at their face value do not constitute offence, no way be allowed to cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislature in enacting the civil criminal procedure codes vis- -vis. the law laid down by the Apex Court. 49(r) It was also held by the Apex Court in Popular Muthaiah v. State rep. by Inspector of Police (2006) 3 SCC 245 at paras-30 31 page-260 that the inherent power is not confined to procedural or adjectival law but even extending to determine substantial rights of the parties and it can be exercised in respect of even incidental or supplemental power irrespective of nature of proceedings; as it acts ex debito justitiae-to mean to do real and substantial justice in the lis for which alone the power exists inherently. 49(s) The Apex Court in Popular Muthaiah (supra) referred the earlier expressions in (1) Nawabganj Sugar Mills v. Union of India 1976-1-SCR-803 holding that, though there are limitations on the powers of the Court, it cannot abandon its inherent powers. The inherent power has its roots in necessity and its breadth is coextensive with the necessity and in (2) South Eastern Coal Fields Ltd. v. State of M.P. (2003) 8 SCC 648 at paras-27 28 page-664 : 2004 (1) ALT 9.3, 14.1 (DN SC). holding that act of court does not confine to act of primary court, but eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of court and the remedy of refusal to allow the trial to proceed is well-established and recognized doctrine both by the English courts and courts in India. There are some established principles of law which bar the trial when there appears to be abuse of process of court. Lord Morris in the case of Connelly v. Director of Public Prosecutions, (1964) 2 All ER 401 (HL) observed: There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. A court must enjoy such powers in order to enforce its rule of practice and to suppress any abuse of its process and to defeat any attempted thwarting of its process . The power (which is inherent in a court's jurisdiction) to prevent abuse of its process and to control its own procedure must in a criminal court include a power to safeguard an accused person from oppression or prejudice. In his separate pronouncement, Lord Delvin in the same case observed that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. 30. In Hui Chi-Ming v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not to be permitted to degenerate into a weapon of harassment or persecution. The Court observed in this case that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. It was held in this case (at p.703, para 7 of SCC): 7......In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases. The Court noticed the prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. The Court further observed that: (SCC p. 749, para 13) 13. ... Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. 38. In the case of Inder Mohan Goswami and another v. State of Uttaranchal and others. 2008 (2) ALT (Crl.) 220 (SC) : (2007) 12 SCC 1, this Court after considering series of decisions observed: 46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The fact that the Code does not contain any other provision giving power to a Magistrate to stop investigation by the police cannot be a ground for holding that such a power must be read in Section 159 of the Code. In the case of State of West Bengal and others v. Swapan Kumar Guha and others, AIR 1982 SC 949 while examining the power of a police officer in the field of investigation of a cognizable offence, Chandrachud, C.J. has affirmed the view expressed by Mathew, J. and observed as follows: (at p.958 of AIR) 22.....There is no such thing like unfettered discretion in the realm of powers defined by statutes and indeed, unlimited discretion in that sphere can become a ruthless destroyer of personal freedom. The power to investigate into cognizable offences must, therefore, be exercised strictly on the condition on which it is granted by the Code..... In the case of Uma Shankar Gopalika v. State of Bihar and another, (2005) 10 SCC 336, this Court has held as under: 6. Now the question to be examined by us is as to whether on the facts disclosed in the petition of complaint any criminal offence whatsoever is made out much less offences under Sections 420/120-B IPC. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, have inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle quando lex illiquid aliciti concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice, in exercise of the powers the court would be justified to quash any proceeding if it finds that initiation/continua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e evidence justifying prosecution is not available, the accused has to be discharged otherwise the prosecution would be an exercise of futility. 50(g) The Apex Court in Common Cause v. Union of India (1999) 6 SCC 667 : 1999 (6) ALT 15.4 (DN OHC) while interpreting the doctrine of Public Trust, explained the aspects of 'entrustment' 'domain' of property 'Trust' 'Trustee' etc., which are the essential ingredients in the alleged offences punishable u/sections 409 420 of IPC and Section 13 of the PC Act. 50(h) The Apex Court in Rishipal v. State of Uttar Pradesh (2014) 7 SCC 215, held that mere dereliction of duty does not attract any penal consequences and continuation of the criminal proceedings is a pure abuse of process of law and deserved to be quashed the proceedings. 50(i) In State of Bihar and others v. Rajmangal Ram (2014) 11 SCC 388 the Apex Court held that power in High Court under Section 482 CrPC to interdict the criminal proceedings against respondent public servant on ground of defects in sanction order is not available, unless the High Court reaches the conclusion of irregularity in sanction. 50(j) The Apex Court in Binod Ku ..... 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